Antony Dominic, J.

1. The appellant and the respondent are husband and wife and their marriage was on 24.11.2005. In the wed-lock they have a male child. Subsequently, due to incompatibilities, the couples separated on 24.10.2009 and are living separately since then.

2. While so, the respondent wife filed G.O.P No.238 of 2010 before the Family Court, Thiruvananthapuram for custody of the child. She also filed O.P No.813 of 2010 for recovery of gold ornaments and for maintenance. During the pendency of the above two cases, the appellant husband filed O.P.No.217 of 2011 for restitution of conjugal rights.

3. The disputes between the parties were referred for mediation and on the intervention of the mediators of Thiruvananthapuram Mediation Centre, Annexure A2 compromise was arrived at. In Annexure A2 mediation agreement, the husband agreed to pay maintenance of Rs.12,000/- per month to the child, the wife respondent agreed to forgo her claims for maintenance and the husband had agreed to pay an amount of Rs.1,50,000/- to the wife. There were also provisions regulating the custody of the child and a car and the ornaments of the wife were also agreed to be returned to her. Finally, the agreement also provided that the parties decided to seek divorce on mutual consent by filing an appropriate petition.

4. The compromise was filed before the Family Court on 30.4.2011 and on that date itself, O.P.No.652 of 2011 under Section 13B of the Hindu Marriage Act was also filed for divorce on mutual consent. On the filing of the case, the case was posted for enquiry after a period of six months. In the meanwhile, in terms of Annexure A2 agreement between the parties, Annexure A1 joint petition was moved and orders were accordingly passed disposing of G.O.P Nos.238 of 2010, O.P No.813 of 2010 and O.P No.217 of 2011. Copies of these orders are produced as Annexures A3, A4 and A5 respectively.

5. When O.P.No.652 of 2011 filed under Section 13B of the Hindu Marriage Act came up for consideration after the six months period, the wife remained absent on 16.12.2011, 29.12.2011 and on 19.3.2012, when both were absent and as a result, the petition was dismissed for default. The appellant challenged this order of the Family Court before this Court in O.P(FC) No.3011 of 2012. By Annexure A7 judgment rendered on 17.9.2012, the order passed by the Family Court was set aside and the Court was directed to dispose of the matter on merits. The parties were also ordered to appear before the Family Court on 4.10.2012.

6. On 4.10.2012, the respondent wife appeared before the Family Court and filed Annexure A8 affidavit withdrawing her consent for divorce. According to her, she signed Annexure A2 compromise due to compulsion of the circumstances as she urgently required substantial amounts to continue her treatment. She stated that when she demanded the appellant to return her money and ornaments, he insisted that she should agree for divorce on mutual consent and that therefore her consent was obtained by force and undue influence. Thereupon, she was cross examined by the counsel for the appellant and her evidence is produced along with the appeal memorandum as Annexure A8.

7. The matter was finally heard and the Family Court by Annexure A9 order dismissed the original petition, holding that since the respondent had withdrawn her consent, which is a condition precedent under Section 13B (2) of the Hindu Marriage Act, for passing a decree of divorce on mutual consent, the petition was liable to be dismissed. The Family Court also relied on Section 23(1) (bb) of the Act. It is this order, which is under challenge in this appeal.

8. We heard the learned counsel for the appellant and also the learned counsel appearing for the respondent.

9. The first contention raised by the learned counsel for the appellant was that the respondent having given her consent for filing the petition under Section 13B of the Hindu Marriage Act, is not entitled to withdraw her consent u